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“We’ve been fighting for years – will my child be able to access the court records?“

You have been fighting for years with your ex-husband/wife/partner over the kids, each of you has thrown so much mud at the other that you could fill a bath with it, but that is alright because your children will never know what you had said about their dad/mum or them in the court proceedings – right? Wrong!

In deciding to grant the adult child access to the file, the Full Court had to consider the requirements of Rule 24.13 of the Family Law Rules 2004 (Cth), particularly those outlined below.

Did the child have a proper interest in the original proceedings?

The primary judge accepted that the child did have a proper interest in the original proceedings and this was adopted on appeal. (It is hard to see how a child about whom orders were made in the past would not satisfy this requirement.)

What is the purpose for which access is sought?

The child’s stated purpose for seeking access to the court file was to read the file to make sense of his living arrangements after separation and in particular, to understand why he was living separately from his siblings. This understanding was intended to aid in his treatment and recovery from mental illness.

Was the access sought reasonable for that purpose?

The Full Court of the Family Court held that the access sought was reasonable for the stated purpose.

The court found that the primary judge made an error in denying the original request by considering whether the file would give the child the answers he sought.

Justice Ainslie-Wallace said: “The correct application of the rule should have been once proper interest was established the question is whether access is reasonable, not whether the appellant will benefit from that access.”

Justice Murphy said: “The primary judge was required to identify the purpose of purposes for which assess to the file was requested and having done so whether that access is reasonable for that purpose or purposes.”

Need for security of court personnel, parties, children and witnesses

The court held there was no evidence to raise security concerns associated with access to the file.

Privacy an irrelevant consideration in a request for access to a court file

The primary judge had considered privacy issues and the fact that access to the file might exacerbate an already fractured family relationship, but the Full Court of the Family Court determined that these were irrelevant considerations.

It is particularly significant to note the Full Court determined that the privacy of the parents and the appellant’s siblings was an irrelevant consideration in a request for access to a court file.

Should any limits or conditions be imposed on access to the court record?

The court ordered no limitations to the applicant’s right to inspect the court file, but curiously, despite Rule 24.13 also permitting copying of the court file if access was granted, the orders only referred to inspecting the file.

Fighting parents take note: court files could be accessed by your child in years to come

While each request for access to a court file by an adult child will be considered on its own facts and circumstances, it would be prudent for fighting parents to consider that one day, many years down the track, your child might gain access to that court file and see the mud that has been thrown and bear that in mind when deciding just how far to go with the mud-throwing.

Important matters of principle at stake in allowing access to court file

Justice Murphy’s remarks in this case provide us with food for thought. Justice Murphy said:

In the somewhat unusual circumstances of this case I accept that, for the appellant, important matters of principle are at stake, namely, what he sees as his right to see what was said about him when he was the subject of parenting orders in this Court many years ago. Perhaps more broadly, the question of whether children, who were the subject of proceedings and who are now well and truly adults, should be able to see what was said about them in respect of their best interests in proceedings which had that issue at their very heart, also involves an issue of principle.

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